THIS case is here on writ of error to review a judgment of the district court of Arapahoe county, finding plaintiff in error guilty of contempt and imposing a fine therefor. The contempt, as found by the court, lay in the resistance offered by the plaintiff in error, to the exercise by the defendant in error, of the right of provisional possession of a ditch right of way across the premises of plaintiff in error, which right had by order of the court been conferred upon defendant in error, as petitioner, in a proceeding under the Eminent Domain Act. The sole ground upon which the contempt judgment is assailed is that the court was without jurisdiction to pronounce it.
The irrigation district instituted the proceedings March 28, 1913, and at the same time obtained an order for possession of the right of way upon the payment of the required deposit. Following trial and new trial granted, the district, October 1, 1914, filed its motion for an "order either dismissing said cause at the cost of Fred L. Lucas or making the said Fred L. Lucas party plaintiff herein, and dismissing said cause as to the East Denver Municipal Irrigation District." This motion was not noticed for hearing, and no further order was made in the case until January 27, 1920, when the court made the following order, "At this day this cause is *Page 408 ordered dismissed at the cost of the plaintiff." April 4, 1925, the district filed its motion to vacate the order of dismissal, and to reinstate the case, which motion, after notice and hearing, was, on May 2, 1925, granted by the court. May 14, 1926, the contempt proceedings now under review were instituted by the district, and upon hearing thereof, plaintiff in error was adjudged guilty of contempt for violating the order of possession which the court had entered in 1913.
The contention of plaintiff in error is that the order of dismissal of January 27, 1920, was a final judgment in the cause; that after the lapse of the term at which that judgment was entered, and of the six months allowed by section 81, of the Code of Civil Procedure, the court lost jurisdiction of the cause; that therefore the order of reinstatement was coram non judice; that since there was no cause pending, and no order of possession in effect, the court was without authority to entertain the contempt proceedings, and that the judgment rendered therein is void.
The position of plaintiff in error is not tenable unless the order of dismissal was valid.
It is apparent from the record that the order of dismissal was not made pursuant to the motion of the district. That motion was not before the court upon notice. The order does not recite it and the dismissal is made upon terms other than those requested in the motion. The dismissal was obviously made by the court sua sponte. That the court was without authority to dismiss the pending action, which was at issue, without notice by rule or otherwise, and without the consent of the parties, is settled in this state. Teller v. Sievers, 20 Colo. App. 109,77 P. 261. In the case just cited, the record of an order not substantially different from that in this case, was construed to import lack of notice to, or consent by, the parties, even though the order so considered was under direct attack on appeal. *Page 409
What facts were before the trial court in ordering the reinstatement in this case we are not advised, for the abstract shows no bill of exceptions at all, and the bill of exceptions which we find in the transcript cannot by any fair construction be held to bring up the proceedings on the hearing of the motion for reinstatement. Neither can we, as counsel insist, presume the notice or consent necessary to give validity to the order of dismissal. A presumption of that class, as shown by the authorities cited by plaintiff in error, runs against a plaintiff in error, in favor of an order as to which reversal is sought. In this case, on the contrary, we must presume in favor of the order of reinstatement as to which error is assigned, that the facts before the court when that order was made justified the court in treating the prior dismissal as invalid. Carnahan v. Connolly, 17 Colo. App. 98,68 P. 836; Rawlings v. Casey, 19 Colo. App. 152,73 P. 1090.
Since it does not affirmatively appear from the record that the order of reinstatement and subsequent proceedings upon the contempt were beyond the authority of the court, the judgment must be, and it is, affirmed.
MR. CHIEF JUSTICE DENISON, MR. JUSTICE BURKE and MR. JUSTICE WHITFORD concur.
On Rehearing and Motion for Leave to File Supplemental Record.